The real lesson of the Gosnell trial

Ed MorrisseyPosted at 1:31 pm on April 21, 2013

Now that the prosecution has rested in the trial of Kermit Gosnell, the defense team gets its chance to present its own case. Needless to say, after the testimony from some of those in Gosnell’s inner circle about the conditions of the clinic and of the infants killed after botched abortions, that will be a tough task indeed for Gosnell’s lawyer. One big question will be whether the jury will hear from Gosnell himself, and the Philadelphia Inquirer believes he may:

Overcoming this pile of evidence may seem insurmountable, but that is the job defense attorney Jack McMahon begins Monday. …

It is not known if Gosnell will testify. The Constitution does not require a defendant to testify or present evidence, and a jury may not consider that fact in reaching a verdict.

But given Gosnell’s past behavior, it would not be a surprise if he does.

From his first court appearance in February 2009, Gosnell has maintained an amiable, courtly demeanor that belies his precarious legal situation and the anger of some antiabortion partisans who have attended his trial.

He has rejected several plea deals from prosecutors, the last before jury selection started March 4. The offer would have let Gosnell serve life in a federal prison rather than the grittier Pennsylvania system and his wife, Pearl, 52, keep their West Philadelphia home.

“You’ll know when I know,” McMahon snapped on Thursday when Assistant District Attorney Edward Cameron asked for his list of witnesses, which he is required to file before beginning his case.

Generally speaking, it’s not a good idea to leave a vulnerable defendant open to cross-examination. In this case, though, it’s probably a toss-up as to which is worse — not having Gosnell explain himself in some manner after the avalanche of testimony in the case, or allowing the prosecution to challenge Gosnell on every photograph and every account given in testimony for an anodyne medical justification for each act. To some extent, McMahon has already tried to establish justifications on each of the deaths during cross-examination, by claiming that the children were doomed no matter whether they were breathing or not, and that the breathing and movements were “involuntary” spasms from a dying fetus, not desperate attempts of an infant to stay alive.

Another question will be whether Gosnell’s defense gets more attention than did the prosecution for much of the trial. Jonah Goldberg wonders whether the coverage will take the same character it has since the media got shamed into reporting on the case at all — as a media story rather than a murder case:

My fellow Fox News contributor Kirsten Powers wrote a USA Today column last week shaming the media for not covering the Gosnell case enough or, in many cases, at all. She got results. Suddenly everyone was talking about it. Though a dismaying amount of the coverage is about why there was a lack of coverage.

It’s an important issue, of course. But it’s not a complicated one. It seems obvious that most mainstream outlets are run and staffed by pro-choice liberals. But whatever the motivation, The Washington Post’s Melinda Henneberger is surely correct when she says the mainstream media are generally locked into a single narrative about abortion: “reproductive rights under siege.”

Ironically, the same factors that might have discouraged the mainstream media from covering the story in the first place now give them an incentive to turn it into a story about the media. CBS News, for instance, broke its broadcast boycott of the trial by running a piece on the political firestorm over the lack of coverage.

The debate over the national media silence over the trial is worth having, but is secondary to the real issue. Goldberg postulates that the media’s sudden bout of introspection is just an avoidance mechanism:

Many prominent Democratic politicians oppose any meaningful restrictions on late-term abortions. President Obama, as a state senator, fought a law that would have protected live infants accidentally delivered during an abortion. Sen. Barbara Boxer once said that constitutional rights begin when you bring the baby home from the hospital. Prosecutors almost never try to enforce violations of late-term abortion laws, in part because the Supreme Court says any abortion is constitutional if the mother’s psychological health would be endangered by continuing the pregnancy.

Regardless, Gosnell isn’t only being charged with performing illegal late-term abortions. He’s being charged with delivering viable babies and killing them. The really profound question here is what is the moral difference between killing a living baby that is outside the mother for a few seconds and killing one that’s still inside. It’s no wonder the media would rather talk about itself.

The Las Vegas Review-Journal’s Sherman Frederick hits the nail on the head. In the end, the question is not so much about the few inches between life and disinterest in the law, but in the difference between life and utilitarianism:

If people focused on Dr. Gosnell, they would see the crazy horror of American abortion policy as codified by the 1973 Roe v. Wade Supreme Court ruling. That ruling figuratively and literally splits babies in a vain attempt to avoid the obvious — abortion kills, whether it is in the last week or the first week of pregnancy. You can call it a fetus or, as the court said, “potential life.” But no matter what euphemisms we might use to soothe our conscience, simple science and staggering medical advances over the past 40 years render it all vanity. …

The grand jury report also notes that Dr. Gosnell kept in his office 20 to 30 jars filled with the feet of the aborted. That Mengele-esque detail aside, Dr. Gosnell’s story should spark questions about the difference between a 25-week-old “baby” and a 24-week-old “fetus.”

Medically, the answer is nothing, and the intellectually honest know it.

The argument for abortion in the new millennium has become the argument for politically correct infanticide. Not the “bad” kind of infanticide that selects for gender or against ethnicity, but the “good” kind of American infanticide that selects against the young for the sole convenience of the old.

That’s the inconvenient truth. Pay no attention to those jars filled with baby feet.

McMahon will spend the next several weeks trying to sell utilitarianism to the jury. Let’s see if the media spends the next several weeks trying to sell utilitarianism to the nation.